STATE OF NEW YORK ________________________________________________________________________ 6826 2023-2024 Regular Sessions IN SENATE May 11, 2023 ___________ Introduced by Sen. MARTINEZ -- read twice and ordered printed, and when printed to be committed to the Committee on Judiciary AN ACT to amend the civil practice law and rules, in relation to extreme risk protection orders The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Section 6340 of the civil practice law and rules is amended 2 by adding a new subdivision 5 to read as follows: 3 5. "Exception" means a respondent who: (a) has previously been deemed 4 certified not suitable to possess a rifle or shotgun pursuant to subdi- 5 vision sixteen of section 265.00 of the penal law; (b) has previously 6 been convicted of a felony, or serious offense as defined by subdivision 7 seventeen of section 265.00 of the penal law; (c) has a current suspen- 8 sion or ineligibility order issued pursuant to the provisions of 9 section 530.14 of the criminal procedure law or section eight 10 hundred forty-two-a of the family court act, with an expiration date no 11 less than one year from the date of the filing of the petition; or (d) 12 is a person under the age of sixteen; and the petition would be based 13 only upon such person's likelihood to engage in conduct posing a threat 14 of harm to himself or herself; and the person did not threaten or use 15 physical force directed at the petitioner or another person or a school; 16 and the person did not use or threaten the use of a firearm, rifle or 17 shotgun; and there is no evidence of a firearm, rifle, shotgun or ammu- 18 nition possessed by anyone in the person's household. 19 § 2. Section 6341 of the civil practice law and rules, as amended by 20 chapter 208 of the laws of 2022, is amended to read as follows: 21 § 6341. Application for an extreme risk protection order. In accord- 22 ance with this article, a petitioner may file an application, which 23 shall be sworn, and accompanying supporting documentation, setting forth 24 the facts and circumstances justifying the issuance of an extreme risk 25 protection order. Provided, however, that a petitioner who is a police 26 officer or district attorney shall file such application upon the 27 receipt of credible information that an individual is likely to engage 28 in conduct that would result in serious harm to himself, herself or EXPLANATION--Matter in italics (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD10980-01-3
S. 6826 2 1 others, as defined in paragraph one or two of subdivision (a) of section 2 9.39 of the mental hygiene law, unless such petitioner determines that 3 there is no probable cause for such filing, or unless an exception list- 4 ed in paragraph five of section six thousand three hundred forty of this 5 article exists, in which case a petitioner who is a police officer or 6 district attorney has the discretion whether or not to file such appli- 7 cation. Such application and supporting documentation shall be filed in 8 the supreme court in the county in which the respondent resides. The 9 chief administrator of the courts shall adopt forms that may be used for 10 purposes of such applications and the court's consideration of such 11 applications. Such application form shall include inquiry as to whether 12 the petitioner knows, or has reason to believe, that the respondent 13 owns, possesses or has access to a firearm, rifle or shotgun and if so, 14 a request that the petitioner list or describe such firearms, rifles and 15 shotguns, and the respective locations thereof, with as much specificity 16 as possible. 17 § 3. Subdivision 1 of section 6342 of the civil practice law and 18 rules, as added by chapter 19 of the laws of 2019, is amended to read as 19 follows: 20 1. Upon application of a petitioner pursuant to this article, the 21 court may issue a temporary extreme risk protection order, ex parte or 22 otherwise, to prohibit the respondent from purchasing, possessing or 23 attempting to purchase or possess a firearm, rifle or shotgun, upon a 24 finding that there is probable cause to believe the respondent is likely 25 to engage in conduct that would result in [serious harm to himself, 26 herself or others, as defined in paragraph one or two of subdivision (a) 27 of section 9.39 of the mental hygiene law]: (a) substantial risk of 28 physical harm to himself or herself as manifested by threats of or 29 attempts at suicide or serious bodily harm or other conduct demonstrat- 30 ing that he or she is dangerous to himself or herself, or (b) a substan- 31 tial risk of physical harm to other persons as manifested by homicidal 32 or other violent behavior by which others are placed in reasonable fear 33 of serious physical harm. Such application for a temporary order shall 34 be determined in writing on the same day the application is filed. 35 § 4. Subdivision 2 of section 6343 of the civil practice law and 36 rules, as added by chapter 19 of the laws of 2019, is amended to read as 37 follows: 38 2. At the hearing pursuant to subdivision one of this section, the 39 petitioner shall have the burden of proving, by clear and convincing 40 evidence, that the respondent is likely to engage in conduct that would 41 result in [serious harm to himself, herself or others, as defined in 42 paragraph one or two of subdivision (a) of section 9.39 of the mental 43 hygiene law]: (a) substantial risk of physical harm to himself or 44 herself as manifested by threats of or attempts at suicide or serious 45 bodily harm or other conduct demonstrating that he or she is dangerous 46 to himself or herself, or (b) a substantial risk of physical harm to 47 other persons as manifested by homicidal or other violent behavior by 48 which others are placed in reasonable fear of serious physical harm. The 49 court may consider the petition and any evidence submitted by the peti- 50 tioner, any evidence submitted by the respondent, any testimony 51 presented, and the report of the relevant law enforcement agency submit- 52 ted pursuant to subdivision nine of section sixty-three hundred forty- 53 two of this article. The court shall also consider the factors set forth 54 in subdivision two of section sixty-three hundred forty-two of this 55 article. 56 § 5. This act shall take effect immediately.